This opinion is
subject to editorial correction before final publication.

Opinion of the Court

EFFRON, Judge:

In accordance with his pleas, appellant was
convicted by a general court-martial composed of officer and enlisted members
of conspiracy to distribute anabolic steroids and of one specification
each of use, distribution, and importation of anabolic steroids, in violation
of Articles 81 and 112a, Uniform Code of Military Justice, 10 USC §§
881 and 912a, respectively. He was sentenced to a bad-conduct discharge,
confinement for 6 months, forfeiture of $200.00 pay per month for 2 months,
and reduction to E-3. The convening authority approved these results, and
the Court of Criminal Appeals affirmed the findings and sentence in an
unpublished opinion.

This Court granted review of the following
issue:

WHETHER THE MILITARY JUDGE ERRONEOUSLY RESTRICTED
THE CONTENT OF APPELLANT'S UNSWORN STATEMENT TO THE SUBSTANTIAL PREJUDICE
OF APPELLANT.

For the reasons stated below, we hold that
the restrictions imposed by the military judge on the right of appellant
to make an unsworn statement during sentencing constituted prejudicial
error.

I

RCM 1001, Manual for Courts-Martial, United
States (1995 ed.), provides that, during the sentencing proceeding, the
defense may present testimony by the accused and other witnesses who are
subject to cross-examination. In addition, RCM 1001(c)(2)(C) provides that
the accused "may make an unsworn statement and may not be cross-examined
by the trial counsel upon it or examined upon it by the court-martial."
The prosecution may introduce evidence to rebut any statement of facts
in the unsworn statement. The unsworn statement may be presented by the
accused, counsel, or both; and it may include either an oral or a written
presentation, or both. Id.

This right of an accused to make an unsworn
statement has been recognized by the Manual for Courts-Martial "since
the adoption of the Uniform Code of Military Justice" and was "permitted
prior to adoption of the Uniform Code. . . ." United States v.
Partyka, 30 MJ 242, 246 (CMA 1990). See, e.g.,
para. 75c(2)(c) and 53h, Manual for Courts-Martial, United
States, 1969 (Revised edition); para. 75c(2), Manual for Courts-Martial,
United States, 1951; para. 76, Manual for Courts-Martial, U.S. Air Force,
1949; §§ 359, 419, and 614, Naval Courts and Boards, 1937.

In United States v. Rosato, 32 MJ 93,
96 (1991), we observed that an accused’s right to make an unsworn statement
"is a valuable right . . . [that has] long been recognized by military
custom" and that has been "generally considered unrestricted."
We also noted that the right was not wholly unrestricted and that it would
be inappropriate, for example, for an unsworn statement to include matter
that was "gratuitously disrespectful toward superiors or the court
[or] a form of insubordination or defiance of authority."

In Rosato, we observed that the portion
of the unsworn statement precluded by the military judge, which concerned
the service's rehabilitation program, did not include any matter that should
have been restricted. We also recognized that the accused could include
in an unsworn statement matters that were not admissible in evidence on
sentencing and that "any concern of the military judge with muddying
the sentencing waters could have been adequately addressed in his instructions."
Id. (citing United States v. Breese, 11 MJ 17 (CMA 1981)).

II

Prior to the sentencing proceeding in the present
case, trial counsel asked the military judge to preclude any reference
to sentences received by appellant’s civilian co-conspirators on the ground
that such evidence was not relevant. Defense counsel responded by noting
that he did not "intend to elicit any such evidence" and would
not "argue any evidence of other sentences to the members of the court"
but that appellant intended to exercise his right to make an unsworn statement
under RCM 1001(c) and Rosato.

There have been two additional factors which
have made waiting during the last year even more difficult. One is knowing
that my friends, the men who are weight lifters just like me and who were
equally involved with steroids, have received such favorable treatment
while I am being treated so harshly. It is my understanding that one of
them . . ., who was in the United States on a visa, was simply asked to
leave and that no charges were brought against him. Another of my friends
. . . was charged months ago, plead [sic] guilty, just like I have, and
received only probation. Then he was allowed to move to Korea even though
he was convicted and on probation. Finally, it is my understanding that
no charges have ever been brought against [the third civilian conspirator],
and may never be brought against him.

The fact that everyone else received such lenient
treatment, and that [the first two friends] have had their cases over and
done with, while I am still waiting after so much time, makes this entire
situation really hard for me.

The military judge sustained trial counsel’s
objection, ruling that the material was "clearly inappropriate to
present to members" and was objectionable as irrelevant and confusing
under Mil.R.Evid. 402 and 403, Manual, supra (1995 ed.).

III

We need not decide in this case whether the
challenged statement, if presented as sworn testimony, would have been
admissible under the rules of evidence during sentencing. As noted in Rosato,
an accused’s right to allocution in the form of an unsworn statement, while
not wholly unconstrained, has been broadly construed for decades. The matters
presented in the proposed unsworn statement in the present case were no
more objectionable than the matters concerning the rehabilitation program
that the defense sought to present in the unsworn statement in Rosato.
In the context of the proposed unsworn statement in the present case, it
was error for the military judge to restrict the appellant's right of allocution.

IV

Although the court below expressed concern
that the information contained in appellant's unsworn statement could be
"confusing and misleading to the members," unpub. op. at 2, we
have confidence that properly instructed court-martial panels can place
unsworn statements in the proper context, as they have done for decades.
A military judge has adequate authority to instruct the members on the
meaning and effect of an unsworn statement. See para. 2-37, Military
Judges Benchbook at 2-46 (Dept. of the Army Pamphlet 27-9 (Change 1 Sept.
1985). Such instructions, as well as trial counsel’s opportunity for rebuttal
and closing argument, normally will suffice to provide an appropriate focus
for the members’ attention on sentencing.

Under the Manual and Rosato, the right
to make a statement in allocution is not wholly unfettered, but if there
are abuses, they should be addressed in the context of the statements made
in specific cases. The mere fact that a statement in allocution might contain
matter that would be inadmissible if offered as sworn testimony does not,
by itself, provide a basis for constraining the right of allocution. If,
in the future, the Manual’s traditional, largely unfettered right of allocution
should lead to a plethora of mini-trials, the President has the authority
to provide appropriate guidance in the Manual for Courts-Martial. Under
the present rules, however, as we noted in Partyka, 30 MJ at 246,
"[S]o long as this valuable right is granted by the Manual for Courts-Martial,
we shall not allow it to be undercut or eroded." SeealsoUnited States v. Martinsmith, 41 MJ 343, 349 (1995) (right to make
unsworn statement "considered an important right at military law,
whose curtailment is not to be lightly countenanced").

V

The decision of the United States Air Force
Court of Criminal Appeals is affirmed as to findings but reversed as to
sentence. The sentence is set aside. The record of trial is returned to
the Judge Advocate General of the Air Force. A rehearing on sentence may
be ordered.

Chief Judge COX and Judge SULLIVAN concur.

CRAWFORD, Judge (dissenting):

I dissent. The majority overlooks RCM 1001,
Manual for Courts-Martial, United States (1995 ed), Mil.R.Evid. 403, Manual,
supra, and Green v. United States, 365 U.S. 301 (1961) (discussing
what remedial action to take when there is an error). The military judge
did not abuse his discretion in prohibiting appellant from including information
on the disparate treatment of others in his unsworn statement because allowing
him to do so would have been "highly confusing and misleading potentially
to the members."

The majority apparently would permit mini-trials
during sentencing concerning selective prosecution and disparate treatment.
These are matters that could be raised by motion prior to trial. Under
the majority rule, an individual who is tried for fraternization could
make an unsworn statement regarding how 20 or 30 senior individuals were
treated for conduct similar to his own. This may well result in a mini-trial
on this matter.

DISCUSSION

Sentencing is an important part of the criminal
process. That is especially true when, as here, the defendant has pled
guilty. In the military, the sentencing procedure is an adversary proceeding
where both sides are afforded the opportunity to admit evidence. Sentencing
is especially important because the sentencing authority has broad discretion.
Generally, there are no fixed sentences,1 no
mandatory minimum sentences, and no sentencing guidelines. Sentencing can
range from no punishment to the maximum punishment, or to any of the alternatives
between these extremes.

The right of a defendant, military or civilian,
to speak to the sentencing authority is based upon procedural rules2and not the United States Constitution. Historically, military law
permitted defendants to speak prior to sentencing because, generally, defendants
were not permitted to testify and were not represented by counsel.3

In the past, we have held that the Rules of
Evidence apply to sentencing absent a contrary provision in those Rules
or the Rules for Courts-Martial.4 We should
not jettison any of these rules simply because the information is part
of an unsworn statement.

RCM 1001(a)(1)(B) provides that, after findings,
the defense may present evidence in extenuation and mitigation. This includes
an unsworn statement by the accused "both in extenuation, in mitigation
or to rebut matters presented by the prosecution...." RCM 1001(c)(2)(A).
While the Manual provides for relaxation of the modes of proof, it does
not provide for relaxation of hearsay rules, except as provided in RCM
1001(c)(3), or admission of evidence that is not relevant to the sentencing
officials.

RCM 1001(c)(1) defines matters in extenuation
and mitigation as follows:

(A) Matter in extenuation. Matter in
extenuation of an offense serves to explain the circumstances surrounding
the commission of an offense, including those reasons for committing the
offense which do not constitute a legal justification or excuse.

(B) Matter in mitigation. Matter in
mitigation of an offense is introduced to lessen the punishment to be adjudged
by the court-martial, or to furnish grounds for a recommendation of clemency.
It includes the fact that nonjudicial punishment under Article 15 has been
imposed for an offense growing out of the same act or omission that constitutes
the offense of which the accused has been found guilty, particular acts
of good conduct or bravery and evidence of the reputation or record of
the accused in the service for efficiency, fidelity, subordination, temperance,
courage, or any other trait that is desirable in a servicemember.

This Court has recognized that the right to
make an unsworn statement is not unlimited. United States v. Fox,
24 MJ 110

(1987)(prior sexual behavior of sexual offense
victim may not be admitted); United States v. Teeter, 16 MJ 68 (1983)(defendant
may not use sentencing statement as a vehicle to challenge Court’s findings
of guilt in litigated case); United States v. Quesinberry, 12 USCMA
609, 31 CMR 195 (1962)(court members not entitled to be instructed on specific
consequences of bad-conduct discharge); United States v. Tobita,
3 USCMA 267, 12 CMR 23 (1953)(following conviction of rape accused could
not use unsworn statement to deny use of force); seealsoUnited States v. McElroy, 40 MJ 368 (CMA 1994)(although generally
judge should not instruct on collateral, administrative consequences of
sentence, judge’s instructions on veteran’s vested benefits were not substantially
erroneous).

Without more information about what happened
to appellant’s friends in the civilian community, the excluded evidence
does not fall within the definition of extenuation or mitigation evidence
under RCM 1001(c)(1). Even if it did fall within those categories, Mil.R.Evid.
403 permits the judge to exclude legally relevant evidence if it would
confuse the issue, unduly delay the trial, mislead the panel, or result
in a waste of time. Whether the judge’s ruling is correct is judged on
an abuse of discretion standard. The judge ruled in this case that the
evidence was potentially misleading and "highly confusing." Hence,
examining the issue under this Court’s deferential standard, there was
no abuse of discretion.

Even when there is an allocution error, the
remedy does not necessarily require reversal. SeeGreen v. United
States, supra. In Green, the trial judge asked the defendant
and counsel, "Did you want to say something?" The defense attorney,
not the defendant, responded. Justice Frankfurter, speaking for a plurality
of the Court, held that Fed.R.Crim.P. 32(a) requires the trial judge to
offer a defendant the right to speak for himself. The Court recognized
that the most "persuasive counsel" may not be the lawyer but
the defendant speaking for himself. 365 U.S. at 302-04. Even though Green
was not unambiguously addressed and given the right of allocution, the
Court affirmed because Green did not show he was denied his right to allocution.

The right of allocution is not constitutionally
required. When a defendant has adequate representation by counsel and has
been afforded the opportunity to introduce relevant evidence at trial,
it is questionable whether a restriction on the right of allocution, especially
in a case such as this one, should result in resentencing.

I would affirm the decision of the court below.

FOOTNOTES:

1The offense of murder, however, under certain circumstances,
has a required sentence of either death or life imprisonment. Para. 43e,
Part IV, Manual for Courts-Martial, United States (1995 ed.); Art. 118(1)
and (4), UCMJ, 10 USC § 918(1) and (4).

I disagree with the majority’s conclusion that
the military judge erred by precluding appellant from mentioning the sentences
imposed by civilian courts on other drug abusers.

Our standard of review on admission of sentencing
matters is highly deferential. We reverse only for a clear abuse of discretion.
United States v. Zakaria, 38 MJ 280 (CMA 1993). This Court has consistently
upheld the military judge’s discretion to exclude irrelevant sentencing
evidence. SeeUnited States v. Becker, 46 MJ 141, 143 (1997)
(military judge may properly exclude evidence on sentencing that is irrelevant);
United States v. Loving, 41 MJ 213, 273 (1994) (even in capital
cases military judge has discretion to exclude evidence having little probative
value), aff’d on other grounds, 517 U.S. 748 (1996). Certainly,
we would not hold that the accused’s "largely unfettered" right
of allocution would require the military judge to permit him to read the
Manhattan telephone book to the court members. ___ MJ (7).

In United States v. Mamaluy, 10 USCMA
102, 106, 27 CMR 176, 180 (1959), this Court observed that "it has
long been the rule of law that the sentences in other cases cannot be given
to court-martial members for comparative purposes." The majority overrules
this principle sub silentio.

I believe that there was no abuse of discretion
in this case because the sentences imposed on civilians by civilian courts
were irrelevant. A civilian court’s attitude toward abuse of anabolic steroids
by civilians has no relevance to the need for good order and discipline
in the armed forces. In my view the military judge was well within the
limits of his discretion when he excluded any mention of the civilian court
sentences. I would affirm the decision of the court below.